Oberdorfer v. White ( 1904 )

Opinion op the court by

JUDGE HOBSON

Sustaining Motion.

Appellee obtained a judgment in the Jefferson circuit court adjudging a deed executed by ber to appellant to be a mortgage. He appealed from that judgment, with supersedeas to this court, and the judgment was affirmed. Oberdorfer ■v. White, 78 S. W., 436, 25 Ky. Law Rep., 1629. The clerk entered up a judgment affirming the judgment appealed from, with damages. A motion is now made to correct the mandate in so far as it awards damages. Section 764 of the Civil Code provides that 10 per cent, damages on the amount superseded shall be awarded against the appellant upon the affirmance of a judgment for the payment of money, the collection of which has been superseded. The only judgment for money in favor of appellee was the judg* ment for costs in the action. It has been the uniform rule of the court not to adjudge damages on costs. It was so held in Handley v. Russell, 8 Ky., 152, and this rule has been uniformly maintained by the court since.

The motion to correct the mandate is therefore sustained.